What is Comparative Family Law?

At the most basic level, comparative family law is the comparison of legal systems for the regulation of intimate and family lives. Comparison can be functional, serving to inform the discussion about similar or different institutional arrangements to address analogous legal problems arising all over the world. Comparisons can also reveal the structural nature of law, leading to questions about the role of legal narratives about family law, the effects of those narratives on the state and the structure of society and more importantly law as a form of legal reasoning that travels across time and space to create new institutional forms and doctrinal arrangements.

The field of Comparative Family Law is undergoing rapid development despite initial constraints. Scholars of comparative law often overlooked family law as an important and distinctive site for the contestation of norms and values, perhaps because they viewed family law as too political for the technical inquiry carried out by comparativists. Other scholars characterized the family as a unique place, the opposite of the market, where traditional rather than modern discourses are at play and where moral and religious values, often in tension with secular visions, shape legal institutions. Family law scholars tended to focus on single legal regimes, rarely opening their inquiry to comparative methods.

Why Adopt A Critical Comparative Methodology?

In an increasingly globalized society, a critical comparative methodology opens up new types of questions regarding the exceptionalism of the family law in both comparative and domestic family law discourses. The inquiry seeks to find the role of the family and family law in different legal discourses about post-colonial identities, nation-building and modernization, law and development, international trade law, comparative constitutionalism, the relationships among state, society and individual and private/public distinctions within domestic legal regimes. The methodological steps of this critical inquiry are at least three.

A first step addresses the post-colonial family generally described as the place for traditional values and distinctly aligned with national identity. Oddly, this ostensibly "local" role for the family pervades colonial and postcolonial history across the world. What genealogies can we attribute to this form of family law exceptionalism? How did this concept of the family travel? What role did it have in the construction of the system of nation-states? Can we identify not only its affective but also its distributive consequences?

A second step challenges the division between the family and the market, by addressing instead the "economic family." Can we see family law as structured in relation to a range of regulatory and economic regimes ranging from taxation, to social welfare, to bankruptcy; from immigration law to international labor agreements to development policy? How do bodies of law that apparently have nothing to say about the family openly or silently contribute to its distinctiveness?

A third step, one intimately connected to the first two, addresses the traveling of local or national legal institutions or "paroles" from one legal regime to another. Is there a global legal "langue"? The aim is to understand how the parole changes its meaning when adopted in different legal contexts and what are the reasons - modernization, legitimation or distributive consequences - for legal elites exporting from or importing into their domestic regimes 'new' legal institutions. Colonization, decolonization, market modernization and globalization have transferred legal ideas about marriage, parenthood, and the family from one place to another: what are those ideas, and by what means have they traveled? Is there a global family?

The Comparative Family Law Project is part of a series of meetings aimed at assessing the "exceptional" place of the family and family law in decolonization, modernization and development.